Introduction to Brain Injury Compensation
When one thinks of a brain injury, it is usually the traumatic type of brain injury which is caused by a severe blow to the head. However, brain injuries can also be the result of many different circumstances including temporary asphyxiation during the delivery process, negligent medical surgery, strokes brought about by stress in the workplace and the inhalation of toxins – whether in the workplace or elsewhere. Whenever any of these situations occur, and you or a loved one sustains an injury due to the lack of care by another party, you are entitled to claim brain injury compensation.
Indeed, it is often the partner or child of a brain injury sufferer who makes a brain injury claim, such is the cognitive damage done by a brain injury. The process for making a brain injury claim for a loved one is no different than when making one for your own injury due, to the potential for substantial brain injury compensation, it is always in your best interests to discuss your brain injury claim with a solicitor – particularly when you may be emotionally traumatised by the life-changing events that have recently occurred.
Non Catastrophic Brain Injury Compensation
Not all brain injuries are catastrophic and many go undetected in a CT scan or brain imaging test. These “Mild Traumatic Brain Injuries” (MTBIs) are commonly known as concussion and are non-anatomical inasmuch as there are no physical signs of injury. None the less, Grade 1 concussion injury – the least serious MTBI – can significantly impact a person’s functioning, resulting in symptoms such as an inability to concentrate, light-headedness, a continuous low grade headache, vision difficulties, anxiety and depression.
As the MBTI might be caused by a micro-shearing of a single nerve tissue, the only way in which a brain injury of this nature can be confirmed is by a neuropsychologist’s examination. A neuropsychologist will conduct a series of tests to analyse the level of brain function and establish whether a non catastrophic brain injury has been caused in a recent trauma. The consequences of an MBTI can cause a person to lose their job, their self-confidence and their quality of life – all factors in a brain injury compensation claim when you have been diagnosed as injured by a neuropsychologist after being involved in an accident for which you were not fully to blame.
Making a Brain Injury Claim
Claims for brain injury compensation are made to the Injuries Board Ireland except in cases of alleged medical negligence* – in which case you will need to engage a solicitor to pursue your brain injury claim through the courts. Applications to the Injuries Board Ireland can be made by post (the form is available on their web site) or online (except in cases involving fatalities and children) and your application has to be accompanied by documentary evidence supporting your brain injury claim.
These documents should include a medical report, a copy of an accident report and any receipts for expenses you have incurred due to the consequences of the brain injury. Depending on the severity of the injury, there may be several other elements of the brain injury claim which need to be supported – from the ongoing cost of medical care to the adaption of your home to accommodate wheelchair access. Even in the least serious brain injury compensation claims, a solicitor is the best person to advise you about your compensation entitlement.
Brain Injury Compensation Process
Once the Injuries Board Ireland has received and acknowledged your claim for brain injury compensation, they will advise the negligent party (“Respondent”) of your claim and seek their consent to proceed with an assessment. When consent is received, their assessment is likely to include an independent medical examination to confirm the extent of your injury (or that of your loved one) and the chances of recovery from it. Thereafter, they will issue you with a Notice of Assessment, which tells you at what value they assess your brain injury compensation claim, and if both parties agree on this amount, an Order to Pay is issued for the compensation settlement to be paid.
Should the negligent party decline to acknowledge their liability, claim that you (or your loved one) contributed to the injury by your own negligence (for example if you failed to wear a seat belt in a road traffic accident) or dispute the amount of brain injury compensation assessed by the Injuries Board Ireland, the Injuries Board Ireland will issue you with an authorisation to pursue your claim for brain injury compensation through the courts. You are also entitled to dispute the amount of the assessment if you feel that it is inadequate and get authorisation to resolve the matter in the courts.
Litigation and Brain Injury Compensation
Quite often, emotionally draining litigation for brain injury compensation in the courts can be avoided. In cases where the negligent party has admitted liability and they (or their insurers) are only disputing the amount to be paid, your solicitor and the negligent party’s legal representative will be encouraged by the courts to reach a brain injury compensation settlement by negotiation. Similarly, when your solicitor has compiled the strongest possible case on your behalf, agreement over negligence can be achieved when the opposing counsel acknowledges the strength of your claim.
Even in brain injury claims in which the injury has been caused by medical negligence*, a court appearance can be circumnavigated if the evidence collected by your solicitor – which will often be compiled with the assistance of one or more medical experts – is sufficiently persuasive to convince the negligent party to settle out of court. Only when there is no other option available (which happens around a third of the time) will a solicitor be forced to put your through the exacting procedure of a court hearing.
The Statute of Limitations and Brain Injury Compensation
The Civil Liability and Courts Act (2004) limits the amount of time a person has to claim brain injury compensation to two years after the knowledge that a brain injury had been sustained. It is important to be aware that the two years does not start until a brain injury is diagnosed – rather than from when the injury was sustained – as in some cases the diagnosis of a brain injury may not be until after a death has occurred.
The exception to this rule is when children are the victims of brain injury. Children have two years from their eighteenth birthday in which to make a brain injury compensation claim although, in catastrophic brain injury claims, the child’s parents or guardians (acting as a “next friend”) may choose to make a brain injury claim on the child’s behalf in order to provide them with the care and treatment they require to give them a better quality of life.
Brain Injury Compensation and Third Party Capture
Third party capture is the name given to an approach by an insurance company with an offer of early settlement for your brain injury compensation claim. Conscious of the fact that brain injury compensation settlements can run into many millions of Euros, and include ongoing annual payments, insurance companies will try to save themselves money by making an offer which appears generous but is in fact inappropriate to the financial support you or a loved one may need for the rest of your life.
It is always in your best interests to consult with a solicitor at any stage of a brain injury compensation claim, but more so when approached by the negligent party’s insurance company. A solicitor will advise you whether their offer represents a fair and adequate amount of brain injury compensation, and negotiate on your behalf if he feels that you should be receiving more. Remember, once you have accepted an insurance company’s offer of early settlement, you cannot go back for more should you run out of money at a later date.
Brain Injury Compensation Summary
No amount of brain injury compensation can ever make up for a life shattered by a brain injury, but it can provide the victim with the best possible level of care and treatment for the remainder of their lives. There are many causes of brain injury, and mild traumatic brain injuries should not be overlooked after an accident, as these can develop over time into lifelong health issues. Irrespective of how the brain injury occurred, and by what means a brain injury compensation claim is resolved, it is always in your best interests to discuss your claim with an experience solicitor to ensure that you claim everything to which you are entitled and receive a fair and appropriate settlement of brain injury compensation.